(May 5, 2020) - It was fitting that a case involving technology ushered in virtual proceedings at the U.S. Supreme Court, which due to the COVID-19 pandemic held the first oral argument in its history to be conducted telephonically and broadcast live May 4.
U.S. Patent and Trademark Office et al. v. Booking.com BV, No. 19-46, oral argument held, 2020 WL 2113365 (U.S. May 4, 2020).
Under Chief Justice John Roberts’ facilitation, each justice had a few minutes of dedicated time to ask counsel representing the petitioner, the U.S. Patent and Trademark Office, and respondent, Booking.com BV, about registering a trademark consisting of “.com” and a generic word like “booking.”
Justice Clarence Thomas, who based on seniority had the slot after the chief justice, broke with his usual minimalist approach to oral argument and posed questions to lawyers on both sides.
The teleconferencing technology performed with few delays during transitions, and the one instance of garbled audio — when Justice Stephen Breyer began his exchange with the respondent’s counsel — was fixed quickly.
Virus influences format and content
The court’s typical loose argument structure has been replaced with rigid a new format:
- A two-minute, uninterrupted opening statement by petitioner’s lead counsel.
- Questioning by the chief justice.
- Questioning by the associate justices, in order of seniority.
- Repeat of first three steps with respondent’s lead counsel.
- A three-minute rebuttal by petitioner’s counsel.
Justice Thomas presented U.S. Justice Department attorney Erica Ross, who argued for the PTO, with a hypothetical question involving the registration of a vanity 1-800 number.
Although they could not jump into the discussion in the typical fashion, Justice Ruth Bader Ginsburg and Justice Breyer circled back to phone numbers during their allotted times.
When distinguishing trademark-eligible internet domain names from generic ones, Booking.com’s lawyer Lisa Blatt of Williams & Connolly drew on her personal experiences during the ongoing pandemic.
”I have searched every grocerystore.com looking for toilet paper. I have now started looking at every hardware.com. … Those are generic — generic usages of a generic word .com,” she said.